2016 (4) TMI 194 - HC - Central Excise

Non tendering or delivery of order-in-original to the assessee - Held that - None of these orders record a finding that the adjudication order dated 22.07.2010 was actually tendered to the appellant assessee on a particular date or then received by him on a particular date. There is no finding that because of a particular provision in any law it is deemed to have been received by him on a particular date. As such, we find the application of mind by the CESTAT as also by the Appellate Authority unsustainable. The fact of not tendering or delivery of order-in-original to the assessee and its impact is lost site of by the learned authorities. Accordingly, both the orders are quashed and set aside and the matter is placed back for fresh consideration before the Commissioner (Appeals) of Central Excise at Nagpur. The said authority shall look into all relevant records and provisions of law and take suitable decision on the request of the appellant for condonation of delay.

Summary

Issues involved: Appeal against order in original, limitation period for filing appeal, service of adjudication order, application of mind by appellate authorities, condonation of delay.

Analysis:

1. Appeal Against Order in Original: The appellant contested the order of the Appellate Authority by appealing to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The central issue was whether the appeal was barred by limitation due to the delay in filing it after the receipt of the adjudication order.

2. Limitation Period for Filing Appeal: The period of limitation for preferring an appeal against the order in original is three months as per Section 85(3) of the Finance Act, 1994. The crucial factor is the date of receipt of the decision or order by the appellant. The appellant claimed that they did not receive the adjudication order until a letter from the Superintendent prompted them to pay the dues, indicating a delay in being informed about the order.

3. Service of Adjudication Order: Section 37(C)(2) of the Central Excise Act emphasizes the service of decisions, orders, summons, etc., on the appellant. The order must be tendered, delivered by post, or affixed as prescribed. Mere forwarding of the order to the appellant is not sufficient to trigger the start of the limitation period, as highlighted by Section 85(3) of the Finance Act.

4. Application of Mind by Appellate Authorities: The Commissioner (Appeals) and CESTAT both failed to ascertain the actual receipt date of the adjudication order by the appellant. The orders did not establish when the order was tendered or received, nor did they consider any legal provisions deeming the order to have been received on a specific date. This lack of attention to the non-receipt of the order led to an unsustainable application of mind by the authorities.

5. Condonation of Delay: The High Court quashed the previous orders and remanded the matter to the Commissioner (Appeals) of Central Excise for fresh consideration. The Commissioner was directed to review all relevant records and legal provisions to decide on the appellant's request for condonation of delay in filing the appeal. The appellant's counsel clarified that the application for condonation was filed as a precaution, maintaining that there was no actual delay in filing the appeal.

6. Conclusion: The Central Excise Appeal was partly allowed, with no order as to costs due to the circumstances of the case. The judgment highlighted the importance of proper service of adjudication orders and the need for appellate authorities to consider all relevant factors, including the actual receipt date, before determining the timeliness of appeals.

This detailed analysis of the judgment from the Bombay High Court emphasizes the legal intricacies surrounding the issues of appeal against order in original, limitation periods, service of orders, application of mind by authorities, and condonation of delay, providing a comprehensive overview of the case.